Stone Makes the Case for Reframing Debate on Judicial Activism

Taking Back the Framers’ Constitution

Geoffrey R. Stone

ACSBlog

September 12, 2011

In a recent column looking forward to the 2012 presidential election, conservative legal blogger Ed Whelan argued that “the battle over the proper role of the Supreme Court is a political winner for conservatives.” Conservatives, he maintained, have “succeeded in defining the debate [over judges]: a judge is either a judicial activist or a conservative.’”

The sad truth is that Whelan’s analysis is largely correct. Conservatives have, indeed, persuaded the American people that (1) judicial activism is illegitimate, (2) judicial restraint and “originalism” are the proper approaches for American judges, and (3) conservative judges adhere to the principles of judicial restraint and originalism and are faithful to the “umpire analogy.”

Each of these propositions is false – and dangerous to the American constitutional system. It is the responsibility of the American Constitution Society to make the case for why this is so. This is, most fundamentally, why ACS was founded – to articulate, explain and defend a principled approach to constitutional interpretation that is true to the vision of the Framers and their understanding of both the Constitution and the distinctive and essential role of courts in the interpretation and enforcement of the Constitution.